Decision Date: August 30, 1999

Panel: Toby Vigod

Keywords: Water Act – ss. 39(1), 40(7), 41(1), 42; dam; stored or impounded water; danger to life and property; Engineer’s Order; removal of works; stay application

The Engineer under the Water Act issued an Order to Duncan Devlin on July 21, 1999 requiring that he drain the water impounded by a dam that he had constructed on his property and that he completely remove the dam. Mr. Devlin had not obtained a water licence before beginning the construction of the dam. The Order provided that the draining and dam removal be completed on or before August 31, 1999. Mr. Devlin appealed and requested a stay of the Order until such time as he could afford to put in a deeper well to supply his domestic water needs or, in the alternative, until he could secure a water licence on the unnamed creek at issue.

The Board applied the usual three-part test for stay applications, as set out in the Supreme Court of Canada decision in RJR-MacDonald Inc. v. Canada (1994), to determine whether to issue a stay in this case.

With regard to the first part of the test, the Board found that there was a serious issue to be tried, as the parties raised issues concerning the potential for harm to Mr. Devlin’s family and to fishbearing streams. The Board also found, in considering the second part of the test, that Mr. Devlin could suffer irreparable harm if the stay was not granted, as it was unlikely that Mr. Devlin would be able to recover the costs associated with providing an alternative source of domestic water. However, on the final question of the balance of convenience, the Board found that financial loss or inconvenience to Mr. Devlin of finding an alternative water source in the summer months was outweighed by the more imminent possibility of downstream damage should the dam fail. The Board therefore held that the dam should be removed as ordered, but that the time to remove the dam be extended to September 15, 1999. The application for a stay of the Order was denied.